Background

1. National and regional ombudsmen in the European Network of Ombudsmen may ask the European Ombudsman for written answers to queries about EU law and its interpretation, including those which arise in their handling of specific cases.

2. On 9 December 2024, the Ombudsman of the German-speaking Community of Belgium submitted such a query to the European Ombudsman. The query concerns the interpretation of Regulation 883/2004 on the coordination of social security systems[1] with respect to child benefits.

3. The Ombudsman of the German-speaking Community of Belgium has been dealing with a case concerning a family that received child benefits from Belgium and the German-speaking Community for several years. The family resides in Belgium but the father works in Germany. The mother was unemployed and received unemployment benefits for some time in Belgium. The family now faces a request to recover the child benefits paid for a period of 18 months because the relevant Belgian authority believes that it had wrongly determined that it was responsible for the child benefits and that they should have been paid by Germany instead.

4.  The query thus sought to clarify which Member State is to pay child benefits in similar cross-border situations, and under which conditions Member States may recover funds from families, notably in situations where the Member State itself wrongly determined that it was responsible for paying child benefits.

The questions addressed to the Commission

5. Based on the query, the Ombudsman asked the Commission the following questions:

1) Could the Commission clarify which Member State has to pay child benefits in a situation where (i) a family lives in one Member State (Belgium) where the mother is entitled to unemployment benefits and (ii) the father works in another Member State (Germany)?

Can the mother’s unemployment benefits be considered as ‘rights available on the basis of an activity as an employed or self-employed person’ within the meaning of Article 68(1)(b)(i)[2] of Regulation 883/2004?

2) Given that Germany accepts to pay child benefits for the six months preceding the application only, how should Article 68(3)(b)[3] of Regulation 883/2004 be applied if another Member State (Belgium) has already paid the benefit for more than six months (although Germany should have paid)?

What are the implications for possible recovery by the authorities of the Member State which paid child benefits for more than six months (although another Member State should have paid) from the recipient or from the Member State that should have paid? Can Belgium or the German-speaking Community of Belgium seek reimbursement from Germany?

3) To the extent that the Member State authorities are implementing EU law and act within its scope of application, does EU law offer any additional protection to persons who received child benefits for extended periods of time in good faith and suddenly face recovery claims based on the fact that the Member State authorities consider that they had wrongly determined the Member State that should pay - such as the protection of property (Article 17 of the EU Charter of Fundamental Rights) and of acquired rights, the principles of non-retroactivity, legitimate expectations, legal certainty, proportionality and sound administration?

The Commission’s reply

6. In reply to the first question, the Commission said that:

• The Belgian family benefit scheme is a residence-based scheme, which means that all children residing in Belgium are entitled to receive family benefits. The German-speaking Community of Belgium is competent for the payment of family benefits in respect of children residing in the German-speaking Community.
• Article 68(1) of Regulation 883/2004 contains specific priority rules when family benefits are provided for the same period and for the same children under the legislation of more than one Member State, for instance because both parents work in different Member States or because the family is residing in a Member State with a residence-based scheme while working in another Member State.
• Under these priority rules, a right to a family benefit available on the basis of an activity as an employed or self-employed person has priority over a right available on the basis of the receipt of a pension and a right available on the basis of residence. In case of rights available in two Member States on the basis of an activity as an employed or self-employed activity, the Member State where the children reside, shall be primarily competent provided that one of the parents is working there (Article 68(1)(b)(i) of Regulation 883/2004).
• Pursuant to Article 11(2)[4] of Regulation 883/2004, a person who receives a cash benefit because of or as a consequence of their activity as an employed or self-employed person is considered to be pursuing that activity. Hence, a person who receives an unemployment benefit, is considered as pursuing a professional activity. Consequently, for the application of the priority rules for the payment of family benefits under Article 68 of Regulation 883/2004, the receipt of an unemployment benefit must be considered a right available on the basis of an activity as an employed or self-employed person.
• On the basis of the information provided, the Commission´s Directorate-General Employment, Social Affairs and Inclusion concludes that:

1. The German-speaking Community of Belgium, where the family resides, is thus competent by priority to pay the family benefits for the period during which the mother of the children receives unemployment benefits in Belgium.
2. Pursuant to Article 68(2)[5] of Regulation 883/2004, the Member State that is secondarily competent, in this case Germany, must pay a differential supplement if the amount of benefits provided under its legislation is higher than the amount of family benefits provided by the Member State that is primarily competent.

7. In reply to the second question, the Commission said that:

• It follows from the reply to the first question, namely that the German-speaking Community is primarily competent for the payment of the family benefits, that the questions regarding the retroactive payment and recovery (third question) are no longer relevant. However, for the sake of completeness, the Commission provided its views on this matter.
• Pursuant to Article 68(3) of Regulation 883/2004, when an institution that receives an application for family benefits, takes the view that it is not competent by priority, it must forward the application without delay to the competent institution whose legislation applies by priority. The latter institution shall deal with this application as though it was submitted directly to itself and the date on which such application was submitted to the first institution shall be considered as the date of its claim to the institution with priority.
• On 25 April 2024, the Court of Justice delivered a ruling[6] stating that Article 68(3) of Regulation 883/2004 is supplemented by Article 81[7]. It referred to its previous case-law[8], in which it stated that “the objective of Article 81 of Regulation 883/2004 is to facilitate the movement of migrant workers by simplifying the administrative formalities with which they must comply, in view of the complexity of the administrative procedures existing in the various Member States, and to prevent persons concerned from being deprived of their rights on purely formal grounds”[9]. The Court further held that “Article 81 ... is to be applied where an application for child benefit is submitted by a migrant worker to the authorities of a Member State which does not have jurisdiction to entertain the application by virtue of the conflict rules laid down by that regulation“[10].
• Based on this case-law, the Commission´s Directorate-General Employment, Social Affairs and Inclusion takes the view that an institution with primary competence for the payment of family benefits, which applies national legislation that restricts the retroactive payment to a limited number of months preceding the submission of the claim such as the German legislation at stake, cannot apply this provision and thus restrict the retroactive payment of family benefits where an institution of another Member State has received a claim for which the latter is not primarily competent in so far as all the other formal and substantive conditions imposed by the legislation of the Member State with priority are complied with.

8. Regarding the third question, the Commission said that:

• The Court of Justice has held that Article 68 of Regulation 883/2004 does not allow the institution of a Member State whose legislation does not have priority to claim from the person concerned (partial) reimbursement of benefits paid in that Member State, on the account of the existence of a right to those benefits provided for in the legislation of another Member State applicable by priority.[11]
• The Member State that unduly paid family benefits because it wrongly took the view that its legislation was applicable by priority, can claim the reimbursement of the unduly paid family benefits from the institution with primary competence in accordance with Article 60(5)[12] of Regulation 987/2009[13].

9. The Commission concluded that, in its view, and in light of the information provided, the authorities of the German-speaking community of Belgium are responsible for paying family benefits to a family residing in its territory and where one parent is in receipt of unemployment benefits under the Belgian legislation and the other parent is pursuing a professional activity in Germany.

The European Ombudsman's conclusion

10. The Ombudsman considers that the issues raised in the query have been adequately clarified. The Ombudsman therefore closes the query.

The Ombudsman of the German-speaking Community of Belgium and the Commission will be informed of this report.

Rosita Hickey
Director of Inquiries

Strasbourg, 20/03/2025

[1] Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02004R0883-20190731&qid=1736262044384

[2] Article 68(1)(b)(i) states:

“1. Where, during the same period and for the same family members, benefits are provided for under the legislation of more than one Member State the following priority rules shall apply:

(b) in the case of benefits payable by more than one Member State on the same basis, the order of priority shall be established by referring to the following subsidiary criteria:

(i) in the case of rights available on the basis of an activity as an employed or self-employed person: the place of residence of the children, provided that there is such activity, and additionally, where appropriate, the highest amount of the benefits provided for by the conflicting legislations. In the latter case, the cost of benefits shall be shared in accordance with criteria laid down in the Implementing Regulation;”

[3] Article 68(3)(b) states:

“3. If, under Article 67, an application for family benefits is submitted to the competent institution of a Member State whose legislation is applicable, but not by priority right in accordance with paragraphs 1 and 2 of this Article:

(b) the competent institution of the Member State whose legislation is applicable by priority shall deal with this application as though it were submitted directly to itself, and the date on which such an application was submitted to the first institution shall be considered as the date of its claim to the institution with priority.”

[4] Article 11(2) reads as follows:

“For the purposes of this Title, persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person shall be considered to be pursuing the said activity. This shall not apply to invalidity, old-age or survivors' pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.”

[5] Article 68(2) reads as follows:

“In the case of overlapping entitlements, family benefits shall be provided in accordance with the legislation designated as having priority in accordance with paragraph 1. Entitlements to family benefits by virtue of other conflicting legislation or legislations shall be suspended up to the amount provided for by the first legislation and a differential supplement shall be provided, if necessary, for the sum which exceeds this amount. However, such a differential supplement does not need to be provided for children residing in another Member State when entitlement to the benefit in question is based on residence only.”

[6] Judgment of the Court of 25 April 2024, L v Familienkasse Sachsen der Bundesagentur für Arbeit, C-36/23: https://curia.europa.eu/juris/document/document.jsf?text=&docid=285191&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=20149469

[7] Article 81 reads as follows:

“Any claim, declaration or appeal which should have been submitted, in application of the legislation of one Member State, within a specified period to an authority, institution or tribunal of that Member State shall be admissible if it is submitted within the same period to a corresponding authority, institution or tribunal of another Member State. In such a case the authority, institution or tribunal receiving the claim, declaration or appeal shall forward it without delay to the competent authority, institution or tribunal of the former Member State either directly or through the competent authorities of the Member States concerned. The date on which such claims, declarations or appeals were submitted to the authority, institution or tribunal of the second Member State shall be considered as the date of their submission to the competent authority, institution or tribunal.”

[8] Judgment of the Court of 29 September 2022, FS v the Chief Appeals Officer and Others, C-3/21: https://curia.europa.eu/juris/document/document.jsf?text=&docid=266564&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=20153614

[9] Point 26.

[10] Point 27.

[11] Judgment of the Court of 25 April 2024, L v Familienkasse Sachsen der Bundesagentur für Arbeit, C-36/23. The Court of Justice held:

“Article 68 of Regulation ... 883/2004 ... on the coordination of social security systems, which lays down priority rules in the event of overlapping family benefits, must be interpreted as meaning that although it does not allow the institution of a Member State whose legislation does not have priority ... to claim from the person concerned partial reimbursement of such benefits paid in that Member State, on account of the existence of a right to those benefits provided for in the legislation of another Member State applicable by priority, where no family benefit has been fixed or paid in that other Member State, it nevertheless allows that institution to claim from the institution with primary competence the reimbursement of the amount of benefits which exceeds that which it is required to reimburse ...”

[12] Article 60(5) reads as follows:

“If the institution which has supplied benefits on a provisional basis has paid more than the amount for which it is ultimately responsible, it may claim reimbursement of the excess from the institution with primary responsibility in accordance with the procedure laid down in Article 73 of the implementing Regulation.”

[13] Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009R0987-20180101&qid=1740997969849